Public Hearings on Official Insignia of Native American Tribes, July 12, 1999

BEFORE THE
UNITED STATES DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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PUBLIC HEARING ON
OFFICIAL INSIGNIA OF NATIVE AMERICAN TRIBES
- - - - -
MONDAY, JULY 12, 1999
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The hearing was convened in the
Latino/Hispanic Community Meeting Room, Room L58A
San Francisco Main Library, Civic Center, San
Francisco, California, at 10:00 a.m., Q. TODD
DICKINSON, Acting Assistant Secretary of Commerce
and Acting Commissioner for Patents and Trademark,
presiding.
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
PRESENT:
ELIZABETH MELTZER, ESQ.
U.S. Patent and Trademark Office
Office of Legislative and International Affairs
Washington, D. C.
STEPHEN WALSH, ESQ.
Office of the Solicitor
United States Patent and Trademark Office
Washington, D. C.
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
A G E N D A
PAGE
OPENING REMARKS 4
Q. TODD DICKINSON
Acting Assistant Secretary of Commerce
Acting Commissioner of Patents and Trademark
STATEMENT OF
NANCY EDWARDS 9
Ojiba
North Michigan
FERN MATHIAS 14
Dakota
South Dakota
MELODY L. MC COY, ESQ. 25
Native American Rights Fund
On behalf of the
Tuolumme Band of Me-Wuk Indians
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
4
P R O C E E D I N G S
10:05 a.m.
ASSISTANT SECRETARY DICKINSON: Good morning!
My name is Todd Dickinson. I'm the Acting
Commissioner of Patents and Trademark for the United
States, as well as the Acting Assistant Secretary of
Commerce. And, on behalf of the Department of Commerce,
I want to welcome everybody here today to this hearing.
As you know, a law was passed by Congress, due
to the active leadership of Senator Bingaman of New
Mexico, which requires the Patent and Trademark Office to
study the issues surrounding trademark protection for the
official insignia for federal and/or state recognized
Native American Tribes.
In order to gain answers to questions, such as
what is an official insignia, how might any changes to
current law affect trademark owners, and other such
questions, the Patent and Trademark Office published two
notices in the Federal Register, which is the official
publication of the notices for agencies in the Federal
Government. The first Federal Register notice was
December 29, 1998; the second was March 16, 1999. We
published two because we wanted to make sure that we have
captured the ongoing interest of the public's views
concerning all aspects of trademark protection for the
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
5
official insignia of Native American Tribes.
We received quite a few responses to both of
those notices. But since written comments are one thing,
and actual live face-to-face communication another, we
thought it was particularly important that the PTO hold a
series of hearings, of which this hearing, in San
Francisco, is the second.
I'd like to tell you a little bit about what
we're doing at the PTO to safeguard the intellectual
property rights of Native Americans.
We are not, as is sometimes believed, an
enforcement agency, like, say, the FBI or the Customs
Bureau. We are principally charged with examining and
registering trademarks, as well as examining granting
patents. But we don't actually send out enforcers or
police, if you will, if someone is infringing someone's
trademarks. However, the act that we have specifically
prohibits the registration of marks that might be
discouraging, encourage a false association between the
applicant and the person, group, or thing identified in
the mark, and we take this responsibility very seriously.
Back in 1994, we undertook to contact every
federally-registered Native American Tribe in order to
compile a list of official insignia so that we might
better uphold the letter and spirit of the Trademark Act.
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
6
To our knowledge, we have not undertaken such a project
for any other group before.
We sent out letters to about 500
federally-registered tribes. Unfortunately, at that
time, we received fewer than 10 responses to our inquiry.
Now we understand the trademarks are not necessarily the
most pressing matter for the vast majority of Native
Americans, so we didn't let this discourage us too much.
Far from it. We made a conscious decision to do the best
we could to insure that others didn't pass themselves off
as Native Americans, or as Native American Tribes, through
the registration of trademarks that create the false
impression of the true origin of goods or services.
Since 1994, all trademark applications
containing the names of tribes, recognizable likenesses of
Native Americans, symbols perceived as being Native
American origin, and any other application which the
Office believes suggests an association with Native
Americans, are examined by one attorney who has become an
expert in this particular area. We have refused a number
of registrations. For example: Marks which have included
the Zia, the word "Zia," or representation of the Zia Sun
Sign, or goods, such as cocktail mixes. We also have
pending a -- we also refused registration to the Sun Sign
Symbol for stationery and computer software.
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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We have been diligent in our efforts, and have
several systems in place to safeguard against the wrong
party obtaining trademark rights and to something in which
they are entitled. We have what is called the "Letter of
Protest Procedure," which is free, as a matter of fact, as
well as our Opposition and Cancellation Proceedings, for
which there is a cost, to make sure that all trademark
registrations are issued in accordance with the Trademark
Act.
So, I'd like to thank you all for indulging me a
little bit in terms of the efforts that we have done, so
far, in our office; but, obviously, we wouldn't be here
today if we weren't very interested in continuing to
uphold our obligations and monitor the compliance that we
have, and receive, frankly, suggestions from anyone about
how we can do our job better. So that's the key reason
that we're here today, as well.
We have, as I understand it, three individuals
registered to testify today: Ms. Reba Fuller, Cultural
Resource Specialist from the Tuolumme Bank of Me-Wuk
Indians -- she's not here, right?
MS. MC COY: No, she isn't.
ASSISTANT SECRETARY DICKINSON: Nancy Edwards,
from the Ojiba Tribe, from Northern Michigan. Where is
that specifically?
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
8
MS. EDWARDS: On the Keweenaw Bay Indian
Reservation, almost at the end of US 41.
ASSISTANT SECRETARY DICKINSON: Very good.
And Fern Mathias, from the Dakota Tribe, from
South Dakota.
Are there any other individuals or groups who
wish to testify today?
[No response.]
As I said, we are here to listen. We would ask
that each person feel free to comment for up to 15
minutes. Though we are fairly informal about time, we do
want to make sure that everyone has an opportunity to
speak, and Ms. Meltzer will be our timekeeper. If you
have written comments, make sure that we get a copy of
those, and that our reporter gets a copy of those, so they
can be included in the formal record.
On a personal note, I want to thank you all for
taking the time to come to testify. We're eager to hear
your comments.
Let me introduce Eleanor Meltzer, who is an
attorney-advisor in our Office of Legislative and
International Affairs; and Mr. Steve Walsh, who is an
attorney in our Solicitor's Office.
Without further ado, why don't I invite Ms.
Edwards to speak.
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
9
MS. EDWARDS: I'm Nancy Edwards, and --
ASSISTANT SECRETARY DICKINSON: Come on up --
can we capture --
MS. EDWARDS: Can we capture? I've always being
captured.
STATEMENT OF
NANCY JONDREAU EDWARDS
OJIBWA, NORTH MICHIGAN
MS. EDWARDS: I'm not sure I'm going to be
talking on the exactly the trademark, and such. What I
wanted to -- I just got the instructions a couple of days
ago, so I hurriedly tried to get something together.
I wanted to talk mainly about the word "squaw."
I know it doesn't particularly put any particular tribe,
Ojibwa, or Dakota, or Cherokee, or anything else; but I
did buy a loaf of bread at Lucky's Store that has "Squaw
Bread" on it.
[The loaf of Squaw Bread was proffered to the
panel.]
When I was growing up on the reservation --
well, actually, I'm going to be talking about "squaw,"
because, in other words, it's an inappropriate manner,
just as the Redskins and the Wahoo, and other names, and
what it means to the Indian people. I am highly offended
by the use of these words in the corporate sector,
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
10
schools, and geographical locations.
In Webster's, Webster's Dictionary, the New 20th
Century Dictionary of the English Language, the second
edition, 1969, the definition of "squaw" was a noun, it
has American Indian, and the first meaning is an American
Indian Woman or wife; (2) any women, chiefly humorous.
When in actuality, the word in the Algonquin language
means the vagina.
Growing up on the reservation, I did not find
the word squaw humorous, as the local guys, young guys,
and local white children used to yell at me and my family
and sisters, and friends, you know, "Hey, look at the
squaws," you know, and "Hey, squaws, come here," which
made me feel embaraased. When I was older, it made me
feel like I was a prostitute, a whore, as I understand
their intention in calling me that. It still hurts, deep
in my heart and soul, when I remember this, these words
when we were young. These children are not born racist;
racism is taught by society, schools and families. It is
time to stop living under this pain of discrimination, and
time to protect our children from this terrible disease:
racism.
As an example: Yesterday, while shopping at
Lucky's, I came across a loaf of "Squaw Bread,"
manufactured by Braun's -- which I just gave you. Just
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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seeing this name, drew me back to that small child being
taunted and made to feel ashamed of who I was. And we had
an open reservation, so the main U. S. 41 went through it.
So, you know, you had people going through, and kids
coming from other areas to the reservation. As an adult,
I'm angry and wonder how the word "squaw" symbolizes this
product, the bread, you know. To me, it has always been
demeaning, and I can't figure out -- maybe the color. I
don't know what they had in mind.
This also brings me to all the geographical
areas that have squaw, like Squaw Valley. You know, what
does this have to do with Indian women, or our private
body parts, for that matter? This is not a matter of
political correctness; it is a matter of human rights. We
have had 500 years of genocide and dehumization. It is
time to stop treating the Native Americans this way.
Talking about "Chief Wahoo," and the "Redskins,"
and the "Braves," and their corporate logos, a mascot is
something to be laughed and jeered at, and a person is
not. It is disrespectful and insensitive. Ignorance is
not okay. Mascots, such as the Redskins, the Braves, and
corporate logos, such as Chief Wahoo, are used in sports
to generate frenzy and promote violence under the guise of
good clean fun. Plus, these mascots are portrayed using
items which are deeply sacred to us, such as the
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
12
headdresses, feathers and drums. These mascots are not
honoring me, but are derogatory and dehumanizing.
As I am the Spiritual Leader of my Tribe, I have
the ceremonies, we go on fast, 4-day fast, and, you know,
and these feathers have to be earned. You know, it's
really hard. You know, you don't go out with 40,000
people, you know, and the religion, and stuff, and to have
somebody making fun of us. So, I'm hoping the Chief Wahoo
goes.
As an example, my grandson attended William S.
Hart High School. That's in Newhall, Newhall, California.
And this high school mascot is the Indian. During a prep
rally, before a game, which are the Canyon Cowboys, the
principal put on a full headdress, which about 8 years
ago, he called and asked me about it. Somebody gave it to
him. I said, "Don't you." Only a few people should ever
wear a headdress, and it's not, you know, a school
principal, for a prep rally.
My grandson was highly offended. He tried to
find the principal afterwards to tell him how he felt and
how terrible he thought it was that he would do this. I
have a picture of the guy. He felt devastated to see the
principal and an educator acting in a manner of racial and
cultural insensitivity.
It is horrifying to have my grandchildren, and
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
13
other children, see this as acceptable behavior. We have
desensitized entire generations of children by
inappropriate and inaccurate role playing. This is called
"ethnic cleansing." You know, I hear about ethnic
cleasning over in Kosovo, and all over, you know; but this
is what happened to our people here. As far as I'm
concerned, Hitler got it from us with the Jews.
I urge you to put an end to corporate symbols
that are hurtful to Native Americans. They do not honor
Native Americans, but they are offensive.
I want to thank you for listening to me here
today, and I hope you take my words to heart when deciding
on this important legislation. And I wanted to show you a
picture of our principal that was taken in the a yearbook.
I guess my children are out of school, so is my
grandchildren. He didn't know it was in one of the
yearbooks, you know. And he happens to be Jewish, too, so
I was really further hurt that he would do that.
[The picture was proffered to the panel.]
MS. MELTZER: May we keep this?
MS. EDWARDS: Yes, keep that. And here's
something about all the names, geographical names. In
Minnesota, there's a couple of girls in Cass Lake that got
the community and the state to change their names from
squaw-something, so it can be done.
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
14
I thought that was what we were supposed to talk
about. That's what I told John about this squaw bread. I
went in a restaurant, and they bring two rolls, one white
and one brown. I said, "What is this one?"
She said, "Oh, it's squaw bread."
So, anyway, thank you.
ASSISTANT SECRETARY DICKINSON: That's fine.
Thank you, Ms. Edwards. We appreciate your testimony.
Any questions at all for Ms. Edwards?
MS. MELTZER: I don't.
ASSISTANT SECRETARY DICKINSON: Thank you very
much.
Ms. Mathias.
STATEMENT OF
FERN MATHIAS
DAKOTA
SOUTH DAKOTA
MS. MATHIAS: I didn't bring my evidence, like
the Cherokees, the jeeps, or Dakota Trucks. Too big to
bring.
My name is Fern Mathias. I'm director of the
American Indian Movement in Southern California. I'm also
a member of the Sisseton-Wahpeton Band of Dakotas in South
Dakota. I came from a school called the "Redmen." So,
we, in high school, I did not feel comfortable going to
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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that school. We were the only family who went to that
school. The rest of them were farmers. But, anyway, I
just want to read you my testimony.
We do not want tribal names and symbols to be
used to sell products or to identify non-Indian entity,
such as the Apache Helicopter, Crazy Horse Beer, Cherokee
cars, or products. Like some of these stores have
Cherokee clothing. And we certainly do not want
non-Indians trademarking Indian names and symbols. Just
because the Indians didn't have copyright laws doesn't
mean others can just take and use their symbols. That's
pretty dishonorable and unfair.
We know legally non-Indians have been able to do
this, but what about the sense of respect for another
culture's values, a culture where copyright protection or
locks or jails, for that matter, were not needed? The
dominant culture makes laws because they have no sense of
justice. They need to protect themselves against their
own people. How sad.
We, as Indian people, never had to regulate
fairness, dignity and respect. It came naturally. But we
live in America, in the modern age, and we have to protect
ourselves. We need to make a list of Indian symbols,
especially the religious ones, that should be excluded
from commercial use. We need to create an awareness of
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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these symbols and explain why it is offensive to use them.
Every company and official organization needs to be
furnished with such a list so there will not be the excuse
of pleading ignorance. The following are a few examples:
Sacred religious symbols;
Sacred religious words;
Tribal insignia;
Names of Tribes;
Indian words of significant social, religious or
tribal meaning.
Tribes should furnish list of images, symbols,
insignias and words they would like to see protected by
law from being used in commerce or government (e.g., like
the Zia Sun Symbol on the New Mexico state flag).
Especially in this day of internet and cyberspace, Indians
have to be doubly vigilant as any of their images and
words will be and are used there, as well, to lure
customers to web sites that sell items that have
absolutely nothing to do with Indians. It is exploitation
of Indians for commercial purposes or disrespect and theft
of Indian symbols. It is very hard to fight big
corporations who blatantly and unfeelingly go ahead and
use Indian insignia.
For example: Tribal Voice, if any of you have
been on the web site, is a commercial site funded by
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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McAfee Associates, who make network security software for
the U. S. Government. It has no native association, but
to market the software package called Pow Wow. This same
company markets pornography, and one of the pornographic
characters is called "Heyoka," a word in my language.
Heyokas are sacred, not twisted perversions like the one
found on this site.
Here in San Francisco, there is an adult club
downtown called "Crazy Horse." By the way, whatever
happened to the law here in California, introduced in
1995, AB 1521, to outlaw Crazy Horse Malt Liquor? How on
earth is it possible or a nightclub to carry that same
name?
Also offensive are American Indian Barbie Dolls
and Pocohontas Barbies. Disney, supposedly a
family-oriented organization, is one of the worst
offenders.
Indians are always told that sports mascots
honor Indians. Where is the honor in a name like
Redskins? Where is the honor in a grinning stereotype
like the Cleveland Indians's mascot? How do you think it
makes Indians children feel? How does it make non-Indian
children feel? It teaches them racism. No wonder the
people of America are racist. Racism is taught in the
schools of America.
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
18
Stereotypical greeting cards, like Leanin' Tree,
are offensive. Also very offensive are Native American
Tarot Cards, which mixes symbols of different nations on
one card. It is complete disregard for the religious
significance or our people, or, even worse, of
disinterest.
Again, lack of copyright protectioon makes it
possible for these products to be sold without even a
single Indian Nation, or any organization, benefiting from
the any of the proceeds. The money goes into the pockets
of greedy, exploitative companies, who are too lazy to
think of their ideas.
I want to thank you for permitting -- I just
found out at the last minute that this was happening, but
I want to thank you for inviting me.
ASSISTANT SECRETARY DICKINSON: Thank you, Ms.
Mathias.
MS. MATHIAS: I want to show you some of the
offensive things on the internet: Sparky, Pocohontas,
and all these images of Chief Wahoo. This is how to tell
a Jew. It's a book. And what would America do if we had
Africans -- I mean, Black people would not stand for it.
ASSISTANT SECRETARY DICKINSON: Ms. Mathias, let
me ask you a couple of questions. One of the questions we
posed was how to define what the official insignia of a
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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Native American Tribe would be. Do you have any thoughts
on that, how we could tackle that question?
MS. MATHIAS: What would you say to that one?
MS. EDWARDS: What was the question again?
ASSISTANT SECRETARY DICKINSON: One of the
questions we have before us about the legislation is how
to define what the official insignia of a Native American
Tribe is. The suggestion has been made that we establish
a registry, for example, of official insignia, so that our
trademark examiners will know what the official insignia
are when others may seek to register them. How would we
-- what is your best advice on how we could define what an
official insignia is?
MS. MATHIAS: I would say with the religious --
see, before 1934, we had our own council, and they were
all councils where the people were involved, that were
selected by the people. Now, they have councils that are
like the U. S. Government. They call them IRA, Indian
Reorganization Acts, which is really the Howard Bill of
1934. That's the bill that came out of it. Since that
time, we have Tribal Councils that are like the U. S.
Government.
So, I would say go to the traditional people.
Those are the people who know and who still -- it's like a
secret society, almost, you know. The traditionalists
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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don't go out there advertising. You don't see them
advertising. Just like you see -- they're against people
who are what we call charlatans or new-agers, who are
taking our spirituality and selling it. And they do take
some of our symbols and sell it, you know, like -- I don't
know.
There's some organizations, like the Harley
people, you know. They're all over the world. They go
all over the world and sell our spirituality. And there's
some Indian people who do it, too, you know because they
have the White organizations backing them with money.
They're being used. There are a few individuals who are
being used to do that.
So, my answer to that question would be to go
back to the spiritual leaders, to go back to the
traditional people.
MS. EDWARDS: You know, they would have --
ASSISTANT SECRETARY DICKINSON: I'm sorry. This
is Ms. Edwards.
MS. EDWARDS: Yes, I'm sorry.
Each tribe has their own, you know, their own --
what do you call it? -- seal. So, if it's something that
comes from Keweenaw Bay, you know, and if it's official,
it would have that seal on there, approved by. But each
nation has their own seal. So you're talking to all the
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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tribes, so --
ASSISTANT SECRETARY DICKINSON: So one way to --
MS. EDWARDS: Submitting their --
ASSISTANT SECRETARY DICKINSON: Submitting their
official seals?
MS. EDWARDS: Yes, I would think that would be --
that was one way to look at it.
MS. MATHIAS: We just got these last night at 8
o'clock.
MS. EDWARDS: Yeah.
MS. MATHIAS: It was about 8 o'clock. And I
asked for them, you know, from your office, but she didn't
know what I was talking about, your secretary.
ASSISTANT SECRETARY DICKINSON: Just for future
reference, this is also on our web site. So, if you ever
need anymore information from us, our web site has all of
this, and it's been posted there for probably a month or
two at this point.
MS. EDWARDS: So your main job is to find a way
to, to have a stamp that signifies not made in Japan, but
made by --
ASSISTANT SECRETARY DICKINSON: We're here --
we've been asked by the Congress to actually answer a few
questions; one of them is: How would we define official
insignia?
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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MS. EDWARDS: Well, you can't identify, I don't
think, because each tribe is -- that's been our problem,
because of their nationalism. You know, each tribe has
their own --
MS. MATHIAS: We're all different nations.
MS. EDWARDS: Yeah.
MS. MATHIAS: We have our own --
ASSISTANT SECRETARY DICKINSON: Would one way be
for us to inquire of each of the nations --
MS. MATHIAS: Each nation.
ASSISTANT SECRETARY DICKINSON: -- what they
regard as their official insignia, and that they would
send in a copy of the seal or the other insignia?
MS. EDWARDS: To me, that would make sense
MS. MATHIAS: Yeah.
MS. EDWARDS: Because we all have our own seals.
You know, Keweenaw Bay has their own seal. And whatever
paper comes out of their head, you know, their letterhead,
you know, has it on there. So, to me, that would be the
main thing.
What other questions are looking up for the
Congress?
ASSISTANT SECRETARY DICKINSON: I think that's
the principal one we talked about. The other is how to
establish a -- if we establish a registry, how we would
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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organize that registry and then use it.
MS. EDWARDS: Well, it sound like you're putting
everything on the internet. So that seems to be the
superhighway of the future.
I would like to know why -- I mean, you don't pay
attention to it anyway. Didn't Congress pass a law saying
that Native American jewelry has to be -- to call it
Native American, it has to be stamped, you know, or
something, Native American jewelry, official. And you
have to have a card saying your registered with the tribe.
Whatever happened to that law?
MS. MATHIAS: That was the Arts and Crafts Law.
MS. EDWARDS: Yeah. I mean, we have stuff
selling --
ASSISTANT SECRETARY DICKINSON: That law has been
cited to us as part of these hearings --
MS. MATHIAS: Yeah.
ASSISTANT SECRETARY DICKINSON: -- so we are
aware of that.
MS. MATHIAS: Because we have trouble. Every
pow-wow we go to, we have trouble. There are people,
non-Indian, selling our things.
ASSISTANT SECRETARY DICKINSON: One question I
had was: You mentioned the concern you had over some of
the derogatory nature of registered marks. I just wanted
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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to, in case you hadn't been aware, the Trademark Trial and
Appeal Board, which is one of out boards at the Patent and
Trademark Office, has cancelled several marks of one of
the professional football teams, based in Washington,
because the --
MS. MATHIAS: The Redskins.
ASSISTANT SECRETARY DICKINSON: -- the name of
the team was found by the Board to have been derogatory
under section 2(a) of the --
MS. MATHIAS: What's going to happen now? Are
they still going to be able to sell their paraphernalia?
ASSISTANT SECRETARY DICKINSON: Well, we have
cancelled the registration, and they, the owner, the
previous owner of the registration, has a number of
options, including appeal. And, basically, the ball is in
their court to --
MS. MATHIAS: How long will that take?
ASSISTANT SECRETARY DICKINSON: I don't have a
good feel for that. I'd say probably several years.
MS. EDWARDS: So they had registered it -- right?
-- and said it was their exclusive use of "Redskins."
That's allowed?
MS. MATHIAS: What year was that?
ASSISTANT SECRETARY DICKINSON: I'm not sure
exactly.
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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MS. MELTZER: In 1934.
ASSISTANT SECRETARY DICKINSON: Are there any
other -- well, do either of you have any further comment
or statement for the record? Do we have any other
witnesses? Those are my final two questions.
MS. MC COY: I'm Melody McCoy. If the Patent and
Trademark Office would permit, I have a copy of Ms.
Fuller's testimony. I'd be happy to give it.
ASSISTANT SECRETARY DICKINSON: That would be
fine. Would you come forward?
MS. MC COY: Sure.
STATEMENT OF
MELODY L. MC COY, ESQ.
NATIVE AMERICAN RIGHTS FUND
ON BEHALF OF
TUOLUMME BAND OF ME-WUK INDIANS
MS. MC COY: My name is Melody McCoy. I'm a
staff attorney with the Native American Rights Fund, in
Boulder, Colorado.
The Native American Rights Fund represents a
tribe located near here, the Tuolumme Band of Me-Wuk
Indians. That tribe has turned to us for representation
in protecting a number of aspects of their tribal
intellectual property rights. And, so, we have, in
response to the Patent and Trademark Office's request for
JAMES W. HIGGINS, CVR
San Francisco, California
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comments, filed comments on this issue about trademark
protection.
The Tribe's cultural resource specialist, Ms.
Fuller, was unable to be here today; but she did prepare
testimony for today; and it goes like this:
The Tuolumme Band of Me-Wuk Indians appreciates
this opportunity to testify today before the United States
Patent and Trademark Office on the Statutorily Required
Study of Official Insignia of Native American Tribes. The
Tribe is very pleased that federal law may extend
trademark protection to tribal insignia. Our comments
today address why and how this extension should be
accomplished.
There are over 550 federally recognized American
Indian and Alaskan Native Tribes in the United States
today. Each tribe has a government-to-government
relationship with the United States. While we no longer
enter into treaties together, we'er still partners in many
ways, based on our historic relationship and transactions.
Congress recognizes tribal sovereignty and its trust
responsibility to tribal sovereigns in exchange for the
land, water and other resources that we have ceded to the
United States since the country was founded.
In this modern era of a federal policy of Indian
Self-Determination, Congress has passed many good laws
JAMES W. HIGGINS, CVR
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regarding tribal sovereignty, Indian health and education
and Native American natural resources. We also commend
Congress' efforts to protect our traditional tribal
cultures. They may not be perfect, but laws, such as the
Native American Languages Act, The Indian Arts and Crafts
Act, and the Native American Graves Protection and
Repatriation Act, at least recognizes that our tribal
cultures, identities, and values are critical to our
survival.
Similar protection needs to be afforded to tribal
intellectual property. The laws just mentioned, like the
Indian Arts and Crafts Act and the Native American Graves
Protection and Repatriation Act, as well as other federal
laws, protect many tangible aspects of our culture, such
as arts and crafts and human remains and funerary and
sacred objects. But there is no counterpart federal law
protection for our intangible property -- our songs, our
dances, our images, and our symbols.
These intangibles are a vital and valuable part
of tribal cultural and political integrity. That is
especially so in the case of the Me-Wuk Tribe, which is
small; we have only 333 members. Very little is left of
our aboriginal territory, only a Rancheria of 335 acres
located in East Central California. We are not a gaming
tribe. Rather, we have identified our traditional
JAMES W. HIGGINS, CVR
San Francisco, California
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cultural heritage as one of our most valuable resources.
We want to preserve and manage our history and culture in
a professional and orderly manner that takes into account
our traditions and sovereignty.
To accomplish this goal, we have many projects.
We are very active in repatriation efforts under the
Native American Graves Protection and Repatriation Act.
We have a Tribal Archives and Records Project. We plan to
develop a Tribal Cultural and Intellectual Property Rights
Code. Ultimately, we want to establish a Tribal
Interpretative Center that would house an archival center,
a curation facility, and a museum. The Center would serve
our tribe as well as the neighboring Central Sierra Me-Wuk
Tribal population, which is about 4,000, as well as
scholars and the general public.
Our tribal efforts must be supplemented by
federal law, especially in the area of intellectual
property rights. As a general rule, our tribal
jurisdiction only extends within our tribal territory.
This leaves vast areas unprotected. We have, in fact, had
many bad experiences with misappropriation and misuse of
our tribal intellectual property. Songs and designs have
been stolen, taken well beyond our Rancheria, and used for
profit by non-Indians, or not members of the tribe,
without tribal permission or recompense. It seems that we
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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are powerless to stop these actions. We would be remissed
and doing a disservice to our elders and our future
generations if we did not try to change this situation.
We have already submitted written comments to
your agency on this matter. And, now, I will briefly
summarize the highlights of these comments.
Unlike the states, the Federal Government and
foreign nations, Indian Tribes can register their insignia
under current trademark law. This registerability for
tribes should be preserved. The law should be amended to
direct the Patent and Trademark Office to establish a
separate registry of tribal official insignia.
The law should also be amended to help tribes in
instances where their insignia are sought to be registered
or are misused by third parties. Any future registration
and use of tribal insignia by third parties should be
prohibited unless a tribe consents to the registration or
use. In addition, tribal insignia that has already been
registered or used by third parties without tribal consent
should be subject to cancellation.
Our proposed definition of Tribal Official
Insignia is narrow. The insignia must include only those
emblems, or seals, or designs, that represent the tribe's
governmental authority. The insignia must be distinctive,
and reasonable likenesses should be protected, as well.
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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Most importantly, the insignia must consist of words plus
graphic elements. Words alone, including tribal names,
should not be considered insignia. However, we urge that
trademark law and other federal law be reviewed
accordingly to determine what, if any, additional
protections should be afforded to tribal names.
So, we are proposing that trademark law give
tribes the exclusive right to register and use their
insignia. This is justified by the unique federal-tribal
relationship, the trust responsibility, and the
congressional goals of tribal economic self-sufficiency.
Our attorneys in this matter, the Native American Rights
Fund, are submitting separate testimony that details the
law and policy reasons for our proposal in more detail.
We thank you for this opportunity to testify
today on this important matter, and we are happy to answer
to any questions or provide further information to help
you.
ASSISTANT SECRETARY DICKINSON: Thank you very
much, Ms. McCoy. That's excellent testimony. I
appreciate, in particular, the balance of interests that
it addresses. Do you have time for a few questions?
MS. MC COY: Yes.
ASSISTANT SECRETARY DICKINSON: Let me ask, are
you aware of tribes, and does the Tuolumme Band of Me-Wuk
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Indian Tribes, have an official insignia? Have they taken
official action, for example? Or, how would they do --
how would you suggest we consider what constitutes an
official insignia when it's submitted to us?
MS. MC COY: I think the answer to that is that
the Tribe has a logo that it uses. It primarily consists
of a the acorn depicted in a way with some of its
traditional basketry. I can give you a copy of that. This
is, I think, what they would consider their logo. In
addition to that, some tribes have no just a logo, per se;
but they have something more resembling what non-tribal
governments would call a seal or a flag.
ASSISTANT SECRETARY DICKINSON: Right.
MS. MC COY: And most tribes, of which I am aware
-- and I'm speaking now not necessarily on behalf of the
Me-Wuks; but from my experience in working with tribes --
they do have seals or flags. How these are adopted by the
tribes, as a matter of their internal processes, in other
words, whether they use elders, or whether they use
artists, or whether they use their own government, it
seems to me is a matter for the tribe.
ASSISTANT SECRETARY DICKINSON: Right.
MS. MC COY: But once the tribe agrees on that
and presents it to a federal agency, like the Patent and
Trademark Office, then, it seems to me, it's the
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
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responsibility of the Patent and Trademark Office to
consider that the official -- unless the tribe provides
notice that we're changing our symbol.
For example: I would think that, just like any
other registering of a trademark, or when the Patent and
Trademark Office considers, for example, the state of
California saying that this our official seal, and it
takes the government's word for that, the same thing,
though, I think is required in your looking at trademark
registerability, which is: Whether it's been used and,
you know, will be used in commerce, or it's used in a
manner by the government.
Same thing. I mean, if the tribe today were to
come forward and say: Oh, we consider the Nike Swoop as
our official tribal insignia, I would think that there are
a normal means already available in the law for the
Patent and Trademark Office to review that and question it
appropriately. So I don't think there really will be a
problem.
I think the real problem is not so much in how
the tribe decides to present its, or decides on its, seal,
or logo, or insignia. The real issue -- there may be some
disputes between tribes. I mean, suppose you have tribes
that, you know, for whatever reason they both claim the
acorn as a symbol. You know, again, then it would have to
JAMES W. HIGGINS, CVR
San Francisco, California
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be distinctive. The tribe, it would virtually be on the
tribe to say: This is the way that we consider the acorn.
But that is no so different. How many states use stars
and stripes, moons, flowers, like that, too; or, you know,
other graphic elements.
So I really don't think there would be too many
inter-tribal disputes, because, as has been said, you
know, tribes are unique: They have their own histories
and cultures.
ASSISTANT SECRETARY DICKINSON: Well, I think
that was very valuable testimony. Thank you. All of the
testimony today was very, very valuable.
Are there any questions from any of the panel
members?
MR. WALSH: I have a question --
ASSISTANT SECRETARY DICKINSON: Mr. Walsh.
MR. WALSH: -- I could ask Ms. McCoy, just a
clarification on the portion of the testimony that dealt
with what an insignia is.
It says, in the written part it says, "Words
alone should not be considered insignia." And it also
says, "... the insignia must consist of words plus
graphic." I just wanted to clarify.
The logo that you showed us for the Me-Wuk Tribe
doesn't have any words in it. Would a graphic element
JAMES W. HIGGINS, CVR
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alone be okay?
MS. MC COY: I would think so.
MR. WALSH: Okay.
MS. MC COY: Yes. Again, you know, as long as
it's not a Nike Swoop. But in and of itself, I would
think that there is no requirement that -- I don't know,
but, you know, the, for example, the American Flag has no
-- well, that's not a good example, because that's not
registerable because it's the American Flag. But I can
think of situations where there would be no reason to have
the words. So, no. It's the opposite, though. The words
alone I don't think are a good subject for this particular
task that Congress has assigned the agency. I think
that's a separate, separate issue.
MS. EDWARDS: But they do use "Made in USA," and
"Made in China."
MS. MC COY: Right.
MS. EDWARDS: Made by Me-Wuk or Ojibwa.
MS. MC COY: Right, but not as a -- it's my
understanding that's not necessarily a trademark. I would
think, though, that --
ASSISTANT SECRETARY DICKINSON: Let me ask you a
question along that line. Are you aware of any tribes in
your experience, or maybe the Tuolumme Band, who may have
sought to register their own trademarks as trademarks for
JAMES W. HIGGINS, CVR
San Francisco, California
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various goods or services?
MS. MC COY: I don't know of any tribes that have
registered their official so-called fields or flags.
Although, I see tribal seals, flags, and the letterhead
logos routinely throughout Indian Country. I do know that
we did do, in preparation for our representation of the
Tuolumme Tribe in this matter, we have run a search of
tribal economics enterprises that are registering their
trademarks and logos. We came up with, I think, just
short of 200 entries that appear to be by tribal economic
enterprises, most notably the gaming facilities that are
registering those. So someone is advising the tribal
economic enterprises on that matter, and they are
registering, I assume, without problems, and proceeding
accordingly on the commercialization and merchandising of
that.
ASSISTANT SECRETARY DICKINSON: Yes.
MS. MC COY: But I am not familiar with -- I
think that most tribes are unaware of the need for the
process to go through to register their seals and flags
and letterheads. It just has not been a problem and it
gets intertwined with the issues of the use of tribal
mascots, names and symbols of that, as well, and images.
So, again, for purposes of this, which I know is
dealing just with the official insignia, and I presume
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San Francisco, California
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flags, as well, I don't know. To my knowledge, I don't
think there are any registered.
ASSISTANT SECRETARY DICKINSON: We have had
brought to our attention at least one example where a
tribe had registered their name for various goods and
services, both I think government services and clothing,
if I'm not mistaken. I don't remember, unfortunately, the
exact mark.
One thing which this hearing might also help to
do is bring to the various Tribe's attention that the
marks themselves are registerable independently as
trademarks, as you had mentioned in your testimony. And,
just to give a little pitch, we now register -- we now
accept applications electronically over the internet on
our web site, which is www.uspto.gov. And, for $245,
we'll take your credit card --
MS. EDWARDS: How much?
ASSISTANT SECRETARY DICKINSON: Two Hundred and
forty-five dollars, but hurry.
MS. MC COY: One thing, if I could add briefly,
is that, for most tribes, you also have to realize that
the idea of registering a seal, why do it? They haven't
had a problem with that. They may market a few T-shirts,
a few key chains, things like that; but no one else is
probably doing that.
JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460
37
I think more of the issue comes in when you're
dealing with, for example, the Me-Wuk Tribe's acorns and
style of basketry. You know, for some of that, they would
not -- the trademarking comes in, I think, for enterprises
that are interested in economic profit and
commercialization. For some tribes, they would say: Why
in the world would we ever want to register our acorns.
Wee would never sell them. We don't, you know, we're not
in that business of it.
So, again, you have to understand where the tribe
is coming from when they're asked: Have you ever
considered registering this? And I think, too, that, for
the same reason, with all due respect, they might say:
Why should we register anything with the government?
Every time we've registered something with the government,
it has resulted in a loss for us. So perhaps this is an
opportunity to turn that around.
ASSISTANT SECRETARY DICKINSON: Thank you very
much, Ms. McCoy.
Is there any further testimony?
[No response.]
Hearing none, I want to thank everyone for --
MS. EDWARDS: I just wanted to say --
ASSISTANT SECRETARY DICKINSON: I'm sorry.
MS. EDWARDS: -- have you written to all the
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tribes? And, instead of going to San Francisco, where are
all the tribal people going to -- you know, except for her
-- do you know what I mean?
MS. MC COY: I found out about this hearing by
submitting the comments. I've been watching the
legislation since it was passed in October, because my
client has directed me to follow this issue through.
ASSISTANT SECRETARY DICKINSON: We've been
directed to make sure this was as widely known as we
could, through Senator Bingaman's office, in particular,
and by the legislation. We've had it on our web site.
We sent out notices. We had a very healthy response in
Albuquerque, and we'll have another hearing this coming
week in Washington, D. C. It will be the third of the
three.
So, if you're aware of additional witnesses, or
additional tribes, or others, who wish to submit
testimony, we will be accepting written testimony until --
MS. MELTZER: July 30. And just to let you know,
we have some limitations on us, as a federal agency. We
can't solicit individuals, necessarily, to --
MS. EDWARDS: That's not individuals, though.
The tribes, the tribal councils, the chairmen, or, you
know --
ASSISTANT SECRETARY DICKINSON: We're not allowed
JAMES W. HIGGINS, CVR
San Francisco, California
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to solicit witnesses, I'm afraid.
MS. EDWARDS: But the way to do that is to write
a letter to the tribe, saying what's happening, you know,
and do they wish to --
ASSISTANT SECRETARY DICKINSON: Very good
suggestion. Thank you.
Any other comment or suggestions?
[No response.]
I want to thank all the witnesses for appearing
today, taking time out of what I know are very busy
schedules. We appreciate the opportunity to accept this
testimony today. It is very valuable to us, as we go
about our deliberations. As Ms. Meltzer pointed out, we
will be accepting written comments until July 30, and we
will have our report prepared for Congress --
MS. MELTZER: By September 29.
ASSISTANT SECRETARY DICKINSON: So we will
attempt to do this as expeditiously as possible. So you
will hear back as quickly as possible.
The transcript from today's testimony will be on
our web site fairly quickly, I hope, as will the results
and our report. So it will be publicly available and
hopefully easily accessible on the internet, as well as on
paper.
MS. MELTZER: If anybody here would like to have
JAMES W. HIGGINS, CVR
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a copy of the transcripts, not only will it be available
on the web site, but we can fax to you or mail it to you.
MS. EDWARDS: Okay.
MS. MATHIAS: Okay.
MS. EDWARDS: That's be good. Do you have my
address?
ASSISTANT SECRETARY DICKINSON: Thank you very
much. We appreciate it.
This hearing is adjourned.
(Whereupon, at 10:55 a.m., the hearing was
concluded.)
JAMES W. HIGGINS, CVR
San Francisco, California
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41
C E R T I F I C A T E
I hereby certify that this is the transcript of the
proceedings held before the
UNITED STATES PATENT AND TRADEMARK OFFICE
on Monday, July 12, 1999 at San Francisco, California in ,
and that this is a full and correct transcription of the
proceedings.
JAMES W. HIGGINS
Certified Verbatim Reporter
San Francisco, California
(415) 621-2460